Young v. Jones

• Decision Date: 20 June 1979
• Docket Number: No. 57299,57299
• Citation: 149 Ga.App. 819,256 S.E.2d 58
• Parties: YOUNG v. JONES.
• Court: Georgia Court of Appeals

Page 58

256 S.E.2d 58

149 Ga.App. 819

YOUNG v. JONES.

No. 57299.

Court of Appeals of Georgia.

Argued Feb. 8, 1979.

Decided April 9, 1979.

Rehearing Denied May 8, 1979.

Certiorari Denied June 20, 1979.

Young & Associates, S. L. Tucker, Albany, Henrietta E. Turnquest, Atlanta, for appellant.

Vansant, Engram & Corriere, B. Sam Engram, Jr., Alfred N. Corriere, Albany, for appellee.

BIRDSONG, Judge.

Legal malpractice. The facts of this rather convoluted case show the following evolvement: Mr. and Mrs. Jones were in their personal automobile with Mr. Jones driving. They approached a railroad crossing in Albany at about midnight. There was evidence that a small hill or embankment at least partially blocked the view of the track as it approached the crossing from the south. In addition, there was some underbrush. The crossing had a constantly flashing light but no warning bell or gate. The Joneses stopped but could not see clearly up the track. Mr. Jones slowly advanced with both Joneses looking to see if the way was clear. Seeing nothing (there was a curve in the track from the south approximately 1,000 feet from the crossing), Mr. Jones accelerated and proceeded to cross the tracks. Simultaneously, they saw a bright light, and the front of their car was struck by a train proceeding at a speed estimated to be from 35-40 mph. The City of Albany had an ordinance requiring a speed no greater than 15 mph in the city limits at a crossing with no warning bell or gate. Both the Joneses were injured, with Mrs. Jones being the more severely injured. The appellant, Ms. Young, is a licensed practicing attorney in the Albany area. She was referred to the Joneses through a mutual acquaintance. The Joneses agreed to retain Ms. Young to represent them in any lawsuit or negotiations dealing with this accident.

Ms. Young ascertained that the engineer was one Watson. She commenced an investigation of the incident and was contacted by a claims agent who left his card and corresponded with Ms. Young on stationary that bore a letterhead similar to the card, namely "The Southern Railway System." There was evidence that the Joneses were willing to compromise and settle their claim for $75,000, $50,000 for Mrs. Jones and $25,000 for Mr. Jones. The claims agent for Southern Railway Systems countered with an offer of $20,000. The Joneses then countered with an offer of $35,000. At this point, negotiations were broken off.

After well over a year had elapsed from the time of the accident, the Joneses became impatient with the progress and cajoled Ms. Young into filing suit in Dougherty County against Watson (the engineer) who resided in Lowndes County, and against Southern Railway Systems, purportedly the offending railroad, headquartered in Bibb County. In due course, a motion to dismiss was filed by Southern Railway Company asserting that it was not aware of an entity known as "Southern Railway Systems" but due to the similarity of names moved to have the suit dismissed as being brought against a nonentity. The suit was brought in Dougherty County as the county in which the accident occurred. The motion to dismiss also extended to Watson on the ground that there was no proper defendant in Dougherty County and therefore no jurisdiction existed in Dougherty County as to Watson, a resident of Lowndes County. The motion to dismiss indicated that the owner of the train which was being operated by Watson was owned by the Georgia Southern and Florida Railway Company, who employed Watson, and the tracks were owned by Georgia Northern. Ms. Young, being under the belief that the generalized appellation "Southern Railway Systems" was sufficient to include all railroads of the system, including Georgia Southern and Florida as well as Georgia Northern delayed amending the pleadings to show the specific owners of the engine and tracks. The evidence reflects that Ms. Young did not utilize depositions or interrogatories or pursue any other discovery procedure during this time frame to determine the true identity of the proper parties at interest.

The Joneses at about this time in the progress of the case became uneasy with their representation and sought to obtain the services of a "railroad expert." Ms. Young offered several names but all were rejected by the Joneses. The Joneses then sought the services of an attorney from Florida named Beckham. There is a dispute at this point as to whether Ms. Young became an in-state agent for Beckham or whether they were associates in the prosecution of the case. At any rate, the evidence (though disputed) shows that Beckham advised Ms. Young that Southern Railway Systems was a nonentity and recommended that she file a new suit naming the proper railroads as defendants or alternatively amend the original pleadings to add the proper defendants. Ultimately, Ms. Young made a motion to add new parties defendant. She obtained a rule nisi for March 4, 1975. The accident having occurred on March 3, 1973, the two-year statute of limitations for personal injury, ran on March 2, 1975. At the hearing, the trial court dismissed the suit against Southern Railway Systems as being a legal nonentity. The court dismissed the suit against Watson for lack of venue. The court then denied the motion to add the new defendants on the ground that the statute of limitations had run on the action and because there was no suit pending in Dougherty County which could be amended. Shortly thereafter, Georgia Northern and Georgia Southern and Florida Railways settled the property damages with the Joneses for $5,000 taking a general release therefor, but with the release expressly reserving the suit for malpractice against Ms. Young and the second attorney, Mr. Beckham. Beckham also paid over to the Joneses a sum of $3,700 and the action against Beckham was dismissed. Subsequently, the Joneses retained a third firm to represent them in the present action alleging malpractice against Ms. Young and Beckham. Ms. Young apparently intended to file an appeal to the dismissal of the action but after being released from the case, she took no further action and the dismissal became final. During the trial, the trial court allowed the plaintiffs (the Joneses) to present evidence showing the purported negligence of the railroads, the solvency of the railroads and their ultimate amenability to judgment, and then as a part of the bifurcated trial, evidence showing the alleged negligence on the part of Ms. Young in failing to protect the rights of her clients, the Joneses. At the conclusion of the evidence, Ms. Young moved for a directed verdict, which was denied by the trial court. The jury returned a verdict for the Joneses in an amount of $35,000. This verdict was made the judgment of the court. Ms. Young then moved for a judgment n. o. v. which also was denied by the trial court. This appeal followed, enumerating ten alleged errors. Held :

1. In her first enumeration of error, appellant argues that it was error to deny her motion for directed verdict because the release of the railroads signed by the Joneses absolved Ms. Young from any liability as to joint tort-feasor. Initially, we are at a loss to see how Ms. Young became a joint tort-feasor in the negligence of the railroads in causing injury to the Joneses. Pretermitting that observation, however, we observe from the pleadings that a release in the eyes of the law is an affirmative defense which must be specially pleaded, Ms. Young at no time raised this issue in her pleadings, either by her original pleadings or by any amendment thereto. At trial, she did not raise the issue before the jury by introducing evidence to show a release. She was allowed to perfect the record by offering evidence after the jury had dispersed, but the evidence was not admitted on the merits by the court on objection by the defendants, the Joneses.

A party cannot assert an alleged affirmative defense which has not been specifically pleaded. Young v. Bozeman, 229 Ga. 195, 204, 190 S.E.2d 523. This issue, not being presented at the trial level, may not be raised for the first time on appeal. Johnson v. Heifler, 141 Ga.App. 460, 461, 233 S.E.2d 853. This enumeration presents nothing for review.

2. In her next two enumerations, Ms. Young argues that it was error to allow evidence over her objection as to the existence and contents of settlement negotiations with the railroads and the evidence that the railroads were solvent at least to the extent that they could withstand a judgment of $100,000. Appellant's argument would have more merit if this suit did not involve legal malpractice directly related to the personal injury action. It was necessary for the Joneses to show that not only were they...